Industrial relations Q&A re COVID-19

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By Ian MacDonald, Australian Public Transport Industrial Association. This article details some of those regular questions that concern you, and my response from an industry perspective. Remember my advice is not legal advice. It should not be relied upon without you obtaining your own separate legal advice.
Also, do I have to pay the driver for time off if they test negative?
It is probably better if a driver has a temperature to get them Covid 19 tested. I am sure there will be a local testing area. I think it takes about 2 days to get a result, maybe less. The driver should be stood down pending the test result. This might be a case where you consider covering their wages during the testing time, particularly as it is your direction that causes the driver to be off work.
Provided the redundancy is genuine it is possible to re-instate an employee at any time. If redundancy payments and other entitlements are paid then they cannot be reclaimed by an employer. Issues may arise with long service leave as to whether the service is in fact continuous due to the short period off work. Similarly leave entitlements might be challenged if the time off is short. If a person has been made redundant it is wise to allow a reasonable period of time before reinstatement i.e. at least 6 months.

If you are a business in receipt of the Job Keeper allowance, then section 789GE of the Fair Work Act applies to your business. This section allows you to temporarily change the duties of an employee which can temporarily override the Award or an Enterprise Agreement and the original job description of the employee.

The work must be within the competency levels of the employee and the employee’s wages must not reduce.

Subject to restrictions in an enterprise agreement it would be possible to reduce the days of work for a permanent to 3 days provided you still guaranteed 38 hours of ordinary hours in a week. However, if you were seeking to reduce the number of hours from 38 hours this would be a breach of the national employment standards.

An employer can require an employee who has accrued long service leave to take it provided one month’s notice is given. The one month has been waived due to COVID–19. Similarly, any approved and scheduled LSL or annual leave must be taken and cannot be revoked unilaterally by an employee.

If there is insufficient work for part of the permanent and part time workforce and the immediate likelihood is that the lack of work will continue, then an employer has absolute discretion as to which drivers are made redundant or stood down.

Laws relating to discrimination, leading to allegations of adverse action will apply. Care needs to be taken to be able to explain, if called upon, why decisions have been made. Some valid reasons will include ‘last on; first off’, based upon seniority or performance or value to the business.

The best circumstance is to postpone further bargaining meetings especially if the workforce is not operating at full capacity. It would be possible to continue to conduct meetings off site by telephone or video. However, it would be difficult for a bargaining agent to get a scope order to bargain in the current crisis.

The starting point is that an employer must guarantee a permanent employee 38 hours a week. The PVTA does not prevent changes in the types of shifts (i.e. complete to broken). In most cases overtime is voluntary with no guarantee or rostered overtime.

Provided consultation occurs, an employer can change the nature of the shifts including weekend or overtime shifts provided that the 38 hours is adhered to, or in the case of a part time employee, those guaranteed hours of work.

An employer can stand down an employee if there is no work for that employee through no fault of the employer. COVID-19 and reduced services would meet the legislative requirement. In these circumstances the employee stays on the books of the employer and continues to receive the employee entitlements such as leave and LSL.

Such an employee would also be eligible for the employer to apply for JobKeeper payments provided the employer undertook to continue the employee’s employment at the end of the crisis or six months.

An employee can only be made redundant when their job no longer exists. Where services are reduced and there is no need for a driver that could meet the criteria. Consultation must occur with the driver to explain why they are being made redundant and also any other opportunities for work must also be explored.

In this regard cleaning or yard duties might suffice provided the pay rates were the same. In the event that the rates were less, a severance adjustment would be needed to cover the shortfall.

For example, from Monday to Friday to 5 days over 7 days.

Provided an enterprise agreement does not exclude such activity and provided appropriate consultation occurs, an employer can change the way rosters are made. The PVTA allows for rosters to made over any day of the week.

Under most enterprise agreements and the PVTA, drivers have specific job descriptions. But to keep these drivers in work it might be better that they do other work such as cleaning or yard work. 

However, the agreements and Award do not have a mechanism to change the type of work done or even to pay a lower rate. An employee may agree to reduce their wages, hours of work and even type of work undertaken but this is no defence against a claim that the agreement or Award is being breached.

If a shut-down occurs and casual employees are stood down because of the shut down, their entitlement to long service leave continues to accrue and the shut-down period does not affect the continuous service rule.

However, if a casual is simply laid off to the extent that their employment is at an end then any protracted period in excess of thirteen weeks would be seen as a break in continuous service.

Again, this will require consideration of the laws of discrimination and adverse action. For example, you can’t stand down an employee because of their colour, race, religion, or because they have exercised a right such as inquiring about their wages or their prospects of future employment given the reduction in the work load.

This depends upon why he or she chooses to stay at home. If the driver over 70 is ill, then personal leave arrangements may be in play. You could suggest the driver takes some annual leave or even some long service leave, if applicable.

You may be able to simply stand the driver down, so you can apply for a JobKeeker payment. This will only apply if your income has reduced by 30%. 

Otherwise if no leave or otherwise is available the driver may have to be terminated so that the driver can make application under the Job Seeker plan.